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Supported by
Schooling the JudgesThe Selection and Training of Civil Judges
and Judicial Magistrates
About the AuthorsPrashant Reddy T. is a Senior Resident Fellow at the
Vidhi Centre for Legal Policy. Reshma Sekhar is a
Research Fellow and Vagda Galhotra was an Associate
Fellow at the Vidhi Centre for Legal Policy. The Vidhi
Centre for Legal Policy is an independent think-tank
doing legal research to make better laws and improve
governance for the public good.
This report has been designed by Kunal Agnihotri.
For more information, see www.vidhilegalpolicy.in
Contact us at [email protected]
December 2019
AcknowledgmentsThis report is an independent, non-commissioned
piece of academic work. The authors would like to
thank Tata Trusts for their support. The funding for this
report is part of the “Vidhi - Tata Trusts Fellowship”
under which fellows undertake research under the
Justice, Access, and Lowering Delays in India (JALDI)
project. This multi-year initiative aims to advocate for
and implement evidence-based reforms to eliminate
existing backlog in courts and ensure that cases are
disposed within reasonable timelines.
The authors would like to thank their colleague Tarika
Jain for reviewing a copy of the report and sharing some
of the data that was used in this report.
The authors would like to thank Shashvi Mehra and
Muskaan Arora who, as interns, assisted with this
report.
The authors would also like to thank the various
Public Information Officers who provided information
to us under the Right to Information Act and which
information has formed the basis of this report.
Supported by
Prashant Reddy T.
Reshma Sekhar
Vagda Galhotra
Schooling the JudgesThe Selection and Training of Civil Judges and Judicial Magistrates
Contents
Background • 1
The Role of Civil Judges and Judicial Magistrates in the Justice System • 3
The Debate on the Practice Requirement for Civil Judges and Judicial Magistrates • 5
The Judicial Service Examination and Selection Process • 9
The Creation & Functioning of the State Judicial Academies • 11
a) Governance and Faculty at the State Judicial Academies • 12
b) The curricula, for induction training at the State Judicial Academies • 13
c) Clinical or practical training for new candidates • 14
A Toothless Probationary Period • 16
Conclusion • 17
Annexure I • 19
Annexure II • 23
I
II
III
IV
V
1
Background
In India the public discourse around judicial reforms is
focussed mostly on the issues of pendency of cases and
shortage of judges. There is rarely ever a debate on the
qualifications and quality of judges, especially those
who are appointed to the posts of Civil Judge (Junior
Division) (CJJD) or Judicial Magistrate First Class
(JMFC) who not only deal with the largest number
of cases in the country but are also the first point of
contact for the millions of Indians seeking justice before
the courts.
The qualification criteria for these judges varies from
state to state since the Constitution allows each state
government to notify its own qualification criteria,
in consultation with the High Court, through their
respective judicial service rules.1 Historically, the
criteria across most states required a candidate to
have a law degree, followed by a minimum practice
requirement of three years before courts, in order
to write a qualifying examination, which would be
followed by an interview of the candidates by judges of
the High Court and members of the State Public Service
Commission.2 In 2002, the practice requirement of
three years was abolished by the Supreme Court in
an overreaching judgment.3 As a result, most of the
persons selected for these crucial posts are unlikely to
have any experience of practicing law at the bar.
The rationale behind abolishing the bar practice
requirement was that it would be easier to attract
bright law graduates as soon as they completed their
legal education and that a practice requirement of
three years would result in the best of the graduates
opting for other services or continuing with the bar.4
At the time, it was felt that the knowledge and skills
gained in three years of practice was so “unattractive”
to prospective candidates and so insignificant that
it would be better to provide the candidates with
rigorous training in state judicial academies.5 Following
the mandate of the Supreme Court and assisted by
a generous grant that was recommended by the 13th
Finance Commission,6 every High Court now has at
least one state judicial academy7 under its jurisdiction
for the purpose of providing induction training to entry
level judges as well as refresher training to sitting
judges.
In this context, we decided to examine three issues
with the objective of understanding the process by
which the High Courts select and train Civil Judges and
Judicial Magistrates.
The first issue that we focussed on is the role of Civil
Judges and Judicial Magistrates in the Indian justice
system. We will briefly describe their powers and its
impact on the overall justice system. This description of
their powers, we hope, will help the reader understand
the skills that are required by these judges.
The second issue that we examined is the qualification
criteria for these posts, including the quality of the
judicial service examination and the debate on the
mandatory practice requirement to qualify for these
posts. The aim of this discussion is to understand
whether the existing qualification criteria, especially
the abolition of the practice requirement, will help in
selecting the best judges.
1 The Constitution of India, Subordinate Courts, Chapter VI, Part VI. 2 Law Commission of India, Reforms of the Judicial Administration (Report No. 14(1), 1958) 164- 166.3 All India Judges’ Association and Ors. v. Union of India, (1993), 4 SCC 288 32). 4 ibid; Law Commission of India, Report No 14 (n 2) 182. 5 All India Judges’ Association and Ors. v. Union of India, (2002), 4 SCC 247 32; Law Commission of India, Training of Judicial Officers (Report No. 117,
1986) 12.6 State wise release and utilisation of 13th Commission Grants (2010-2015) <https://www.uscourts.gov/statistics-reports/appointments-
magistrate-judges-judicial-business-2012> accessed on 10 December 2019. 7 Except North East region where the North Eastern Judicial Officers' Training Institute train judicial officers from Assam, Nagaland, Mizoram,
Tripura and Arunachal Pradesh and Maharashtra (which also trains judicial officers from Goa) and Tamil Nadu where there are more than one
training academy for judicial officers. The High Courts of Andhra Pradesh and Telangana share a judicial academy.
2Schooling the Judges: The Selection and Training of Civil Judges and Judicial Magistrates
The third issue is the assumption that training at
judicial academies is preparing fresh law graduates
for discharging their important duties as Civil Judges
and Judicial Magistrates. We do so by scrutinizing
the workings of the judicial academies on the basis
of information that these academies provided to us
in response to requests for information filed by us
under the Right to Information Act, 2005 as well as
extensive telephonic interviews that we conducted
with 17 judges who had been trained at 9 different
judicial academies.8 These judges received their training
between 2014-2018. While this is not a representative
sample that can help in drawing conclusions about
all the judicial academies, the responses given to us
by judges trained at different academies were quite
similar. The interviews were conducted between
August and October, 2019. We assured the participants
of anonymity in order to encourage candid responses
since many of the judges were reluctant to speak on the
record.
We will conclude with our recommendations for
ensuring the selection of the best candidates for the
most important role played by Civil Judges and Judicial
Magistrates in the Indian judicial system.
8 Filed by Reshma Sekhar and Vagda Galhotra between 30 March - 5 April 2019, Research Fellow at Vidhi Centre for Legal Policy (Replies on file
with the authors).
3
The Role of Civil Judges and Judicial Magistrates in the Justice System
The district judiciary in India, which is described as the
‘subordinate judiciary’ in the Constitution, consists of
three tiers with the District Judge being in the top tier,
followed by the Civil Judge (Senior Division) and finally,
the Civil Judge (Junior Division). This terminology for
Civil Judge (Junior Division) (hereinafter “Civil Judge”)
varies across states, with some states preferring to
use the term Munsif or Civil Judge, Class II.9 These
same judges are also uniformly designated, under the
Code of Criminal Procedure as Sessions Judge, Chief
Judicial Magistrate and Judicial Magistrate First Class
(hereinafter “Judicial Magistrate”) when they hold
criminal court.
Although junior most in the judicial hierarchy, the
judges designated as Civil Judge and the Judicial
Magistrate have an extremely important role to play
in the justice system. For instance, Article 22 of the
Constitution requires the police to produce all persons
whom they arrest, before a Magistrate within a period
of twenty-four hours. As per the Code of Criminal
Procedure, this Magistrate referred to in Article
22 is a Judicial Magistrate.10 On production of an
accused within twenty-four hours, it is for the Judicial
Magistrate to determine whether the police could be
given further custody of the accused. Although such
remand hearings are often treated as routine in the
Indian setting, the Judicial Magistrate can refuse to
remand the accused to custody if there is a lack of
material on the record to indicate that an offence has
been made out against the accused.11 Additionally,
the Judicial Magistrate may also decide whether the
accused can be released on bail.12
Apart from the powers to decide custody of the
accused, the Judicial Magistrate also plays an important
role in taking cognizance of offences where the police
cannot initiate investigation on their own until a court
of law has taken cognizance of the offence.13 Similarly,
the Judicial Magistrate can also hear private criminal
complaints filed by private complainants and order a
police investigation if a prima facie case has been made
out by the complainant.14
Very often taking cognizance of an offence requires
a deep understanding of the law and the manner in
which it has been interpreted by the Supreme Court
and High Courts. For example, offences such as sedition
have been interpreted in a manner to necessarily
require some form of incitement towards violence or
public disorder.15 Such an interpretation may not be
obvious from a reading of the bare text of the law but is
nevertheless the law of the land because the Supreme
Court has interpreted the provision in such a manner.
It is vital then for the Judicial Magistrate to be well-
versed in case laws and initiate criminal proceedings
only in cases where a prima facie case is actually made
out by the complainant. If not, the rights of citizens
could be severely compromised.
In addition to the above, a Judicial Magistrate, can also
try persons for a number of offences under the Indian
Penal Code and sentence them to prison for a period up
to a maximum of three years.16 This covers a significant
number of non-violent criminal offences. In addition,
Judicial Magistrates may also exercise significant
powers under special legislation such as The Protection
I
9 The Madhya Pradesh Civil Courts Act, 1958 uses the phrase Civil Judge, Class II, while The Tamil Nadu Civil Courts Act, 1873 uses the phrase
District Munsif. 10 Criminal Procedure Code 1973, s 57.11Criminal Procedure Code 1973, s 167.12 Criminal Procedure Code 1973, s 437.13 Criminal Procedure Code 1973, s 190.14 Criminal Procedure Code 1973, s 200.15 Kedar Nath Singh v. State of Bihar AIR 1962 SC 955. 16 Criminal Procedure Code 1973 ,s 29.
4Schooling the Judges: The Selection and Training of Civil Judges and Judicial Magistrates
of Women from Domestic Violence Act, 200517 as well
as under environmental legislations such as the Air Act,
198118 Water Act, 1974.19
Similarly, on the civil side, a Civil Judge has significant
power to hear all types of civil suits within a certain
pecuniary limit unless the legislature has specifically
designated a different class of judges to hear such
cases.20 These limits differ from state to state and varies
between Rs. 3 lakhs to Rs. 5 lakhs.21 These cases could
be anything from contractual disputes to property
disputes to tort law claims. The remedies that a Civil
Judge can grant in such cases varies from injunctions
restraining certain activities to damages which
compensate for losses suffered by the plaintiff. In some
limited cases, the Civil Judge can also order specific
enforcement of contracts. These are all significant
powers in the context of civil disputes and in rural
areas, where civil disputes are presumably valued lower
than urban areas, it is likely that a Civil Judge will be
exercising jurisdiction in a significant number of these
disputes.
The point of discussing the powers of Civil Judges and
Judicial Magistrates, under civil and criminal law, was
to demonstrate the significant influence that they wield
over the lives, liberty and property of Indian citizens.
17 s 5. 18 s 22A(1).19 s 33.20 Copyright Act 1957, s 62; Trade Marks Act 1999, s 134; Patent Act 1970, s 104.21 Section 17 of the Karnataka Civil Courts Act, 1964 lays down the pecuniary jurisdiction of Civil Judge (Junior Division) at Rs. 5 lakhs; Section 6(a)
of The Madhya Pradesh Civil Courts Act, 1958 lays down the pecuniary jurisdiction of Civil Judge (Junior Division) at Rs. 5 lakhs; Section 12 of the
Tamil Nadu Civil Courts Act, 1873 lays down the pecuniary jurisdiction of Civil Judge (Junior Division) at Rs. 5 lakhs; Section 2 of the Uttar Pradesh
Civil Laws (Amendment) Act, 2015 lays down the pecuniary jurisdiction of Civil Judge (Junior Division) at Rs. 5 lakhs.
5
The Debate on the Practice Requirement for Civil Judges and Judicial Magistrates
Historically, one of the qualifying criteria for Civil
Judges and Judicial Magistrates in India has been a
practice requirement of three years before a court of
law, after graduation combined with an examination
and an interview conducted by the State Public State
Commission in consultation with the High Court that
has jurisdiction over the state.22 The qualification
criteria and the selection process have always been
detailed in the Judicial Service Rules that are framed
by the Governor of each state in consultation with the
respective High Court.23 The state legislatures play no
role in the process.
The one issue that has frequently been debated is the
three years practice requirement in order to qualify for
writing the judicial service examination. Examining this
requirement in 1924, the Rankin Committee had stated
the following without offering any explanation as to
how it came to this conclusion:
“The rule in force in certain provinces requiring
candidates to have practice at the Bar for a period
of three years or more furnishes no guarantee
that the candidate has acquired any really useful
experience.”24
The Law Commission in its 14th report, which was
submitted to the government in 1958, recorded the
following submissions made to it, against the practice
requirement of three years:
“It is difficult, if not impossible, under the conditions
at present prevailing in the legal profession for a
person to have any experience or training worth
the name in the period of three to five years
which he is supposed to spend in practicing at
the Bar. The average practitioners at the Bar
cannot in that short period have any worth while
idea of work or practice at the Bar. It is only the
exceptional young man, favourably situated and
having the advantage of a senior member of the
Bar interested in him, who gathers any experience
at all at the Bar in so short a period of time. Such
an exceptional person would naturally not care to
be a competitor for entrance into the subordinate
judicial service. Those who do strive to get into the
judicial service after three to five years at the Bar
are the disappointed persons who have failed to
make a living in the profession and have no hopes
of prospering in it. The disadvantage of recruiting
from persons who had been failures at the Bar was
pointed out by the Chairman of the Bihar Public
Service Commission: “I have come to the conclusion
that during the three to five years of practice at the
mofussil Bar the young man deteriorates more or
less completely”25
“In most cases, what is usually described as
recruitment from the Bar is really recruitment from
among the disappointed members of the bar who
have failed to make any headway in the profession.
It was pressed upon us that if we are able to attract
to the judicial service the really capable young men
from the Universities and subject them to a two
years training, we could have much more competent
judicial officers than the so-called recruits from the
Bar”.26
The Law Commission also records how many lawyers
and judges were satisfied with the quality of munsifs
who joined after the three-year practise requirements:
“…there was a very substantial body of opinion
which still favoured the retention of the system
of recruitment from the Bar. It was no unnatural
that the majority of the practising lawyers who
II
22 The Constitution of India, Art. 234.23 State of Bihar v. Balmukund Shad, (2000) 4 SCC 640. (“As in the case of Rules made under Article 234 of the Constitution, it is expected that if any
rules are intended to be made by the executive under Article 309 with respect to the judicial service, the High Court shall be consulted and its views
given due weight while making such rules.”)24 Rankin Committee, ‘Civil Justice Committee Report, 1924-25’, (1925) 183.25 ibid at 165. 26 ibid.
6Schooling the Judges: The Selection and Training of Civil Judges and Judicial Magistrates
appeared before as witnesses should express
themselves in favour of the retention of this system.
But we also had in its favour an expression of views
from several members of the High Court judiciary.
It was said that in some States, at any rate, the
system of recruitment of the munsifs or lower
grad subordinate judges from the Bar had worked
satisfactorily. It was suggested that it was not so
much the field of selection that was at fault…The
view was express that though a junior at the Bar of
three to five years standing may not gather much
practice, he would still be familiar with the way in
which work is being done in a lawyer’s office and the
manner in which matters are conducted in the law
courts. It was pointed out above all that young man
who had spent some years at the Bar would have
rubbed shoulders with a variety of men, would have
gathered a knowledge of men and affairs and would
have lived a free atmosphere quite different from
that in which a man who has locked himself up in
service after graduation would have lived in”.27
In its conclusion, the Law Commission leans in favour
of a practice requirement of three to five years at the
bar, as a precondition for sitting for the judicial service
examination.28
In its 116th report, on the topic of an All India Judicial
Service, the Law Commission touched on the issue
of abolishing the practice requirement of three
years. It records the opposition to the abolishment
of the practice requirement and how common law
countries always required a practice requirement
for appointment to a judicial post but then dismisses
this opposition on the grounds that “…experience
shows that practice for a very short period say for a
period of two to three years at the Bar hardly imparts
such training so as to make him a good judge”.29 The
Commission cites no evidence in support of this
conclusion.
In its 117th report on the training of judicial officers, the
Law Commission once again touched upon this issue in
the following words:
“Standing at the Bar for a certain period was
considered adequate to equip the entrants to
judicial service for effectively handling causes and
controversies and resolving them according to
law……. this assumption has been found to be wholly
unsustainable.”30
The only evidence cited by this Law Commission report
is the Rankin Committee’s report from 1924.
In its 118th report on appointments to the subordinate
judiciary, which was submitted to the Government of
India in December, 1986 the Law Commission dealt
with this issue once again, but in a superficial manner.
Following are some of the relevant extracts from the
118th report:
“Whether minimum practice at the Bar should be
a pre-requisite for entry into judicial service even
at the lowest level has become a subject matter of
lively debate and strong opinions are expressed
one way or the other. This again is not of recent
origin. Even about three decades back, the Law
Commission took note of a view expressed by
the then Chairman of the Bihar Public Service
Commission that during the 3-5 years of practice at
the mofussil Bar, the young man deteriorates more
or less completely. The Law Commission also took
note of the opinion of the Civil Justice Committee
[Rankin Committee] in this behalf.”31
“Even then, some Judges who responded to
the queries of the Commission have expressed
preference for retention of minimum practice at the
Bar as a prerequisite for entry into judicial service.
It is time to disabuse our mind on this point because
the Law Commission has reached an affirmative
conclusion that this minimum practice at the Bar
hardly qualified the person to be a better judge.
The Law Commission [in its 117th report] has given
cogent reasons for reaching this conclusion and the
same need not be repeated here.”32
In its final recommendation, the 118th report notes
that a practice requirement of three years could be
continued even though it was not really necessary.33
27 Law Commission of India, Report No. 14(1) (n 2) 166.28 ibid 167. 29 Law Commission of India, Formation of An All India Judicial Service (Report No. 116, 1986) 18. 30 Law Commission of India, Training of Judicial Officers (Report No. 117,1986) 12.31 Law Commission of India, Method of Appointment to Subordinate Court (Report No. 118, 1986) [5.3].32 ibid.33 Law Commission of India, Report No. 118 (n 31) 16.
7
As is obvious from the above discussion, the debate on
the practice requirements of three years has always
leaned in favour, albeit reluctantly at times, of retaining
the practice requirement.
Thereafter, it was the Supreme Court which took up
the issue of the practice requirement of three years in
the All India Judges Association (“AIJA”) cases.34 These
cases which dealt with the service conditions and
training of lower court judges, were an unprecedented
exercise of judicial activism where the Supreme Court
pushed the government to initiate substantial judicial
reform.
On the specific issue of a practice requirement of three
years, the Supreme Court in 1993, in the first All India
Judges Association case made the following pertinent
observations, while ordering all states to ensure they
hired only advocates who had practiced law for three
years:
20 “In most of the States, the minimum
qualifications for being eligible to the post of the
Civil Judge-cum-Magistrate First Class/Magistrate
First Class/Munsiff Magistrate is minimum three
years’ practice as a lawyer in addition to the degree
in law. In some States, however, the requirement of
practice is altogether dispensed with and judicial
Officers are recruited with only a degree in law to
their credit. The recruitment of law graduates as
judicial officers without any training or background
of layering has not proved to be a successful
experiment. Considering the fact that from the first
day of his assuming office, the judge has to decide,
among others, question of life, liberty, property and
reputation of the litigants, to induct graduates fresh
from the Universities to occupy seats of such vital
powers is neither prudent nor desirable. Neither
knowledge derived from books nor pre-service
training can be an adequate substitute for the
first-hand experience of the working of the court-
system and the administration of justice begotten
through legal practice. The practice involves much
more than mere advocacy as lawyers has to interact
with several components of the administration of
justice. Unless the judicial officer is familiar with the
working of the said components, his education and
equipment as a judge is likely to remain incomplete.
The experience as a lawyer is, therefore, essential
to enable the judge to discharge his duties and
functions efficiently and with confidence and
circumspection. Many States have hence prescribed
a minimum of three years’ practice as a lawyer as an
essential qualification for appointment as a judicial
officer at the lowest rung. It is, hence, necessary
that all the States prescribe the said minimum
practice as a lawyer as a necessary qualification for
recruitment to the lowest rung in the judiciary. In
this connection, it may be pointed out that under
Article 233(2) of the Constitution, no person is
eligible to be appointed a District Judge unless he
has been an advocate or a pleader for no less than
seven years while Articles 217(2)(b) and 124(3)(b)
require at least ten years’ practice as an advocate of
a High Court for the appointment of a person to the
posts of the Judge of the High Court and the Judge
of the Supreme Court, respectively. We, therefore,
direct that all States shall take immediate steps to
prescribe three years’ practice as a lawyer as one of
the essential qualifications for recruitment as the
judicial officer at the lowest rung.”35
The above reasoning provided by the Supreme Court in
1993 is an excellent articulation of why it is necessary
for judges to have some prior experience at the Bar
before taking on the onerous duty of adjudicating civil
and criminal disputes as Civil Judges and Magistrates.
The court’s point that neither knowledge from books
nor pre-service training, could substitute actual
experience of legal practice, was presumably the reason
that practice requirements always existed in India for
Civil Judges and Judicial Magistrates in State Judicial
Service Rules.
Yet in 2002, when the composition of the bench hearing
the AIJA cases changed, the Supreme Court rolled back
the practice requirement of three years. The following
was the reasoning provided by the Supreme Court for
abolishing the practice requirement of three years:
“32. In the All India Judges case, this Court has
observed that in order to enter the judicial service,
an applicant must be an Advocate of at least three
years’ standing. Rules were amended accordingly.
With the passage of time, experience has shown
that the best talent which is available is not
attracted to the judicial service. A bright young
law graduate after 3 years of practice finds the
judicial service not attractive enough. It has been
recommended by the Shetty Commission after
taking into consideration the views expressed
before it by various authorities, that the need for
34 All India Judges’ Association and Ors. v. Union of India, 1993 (n 3); All India Judges’ Association and Ors. v. Union of India, (2002) (n 5).35 All India Judges’ Association and Ors. v. Union of India, 1993 (n 3) 20.
8Schooling the Judges: The Selection and Training of Civil Judges and Judicial Magistrates
an applicant to have been an Advocate for at least
3 years should be done away with. After taking all
the circumstances into consideration, we accept this
recommendation of the Shetty Commission and the
argument of the learned amicus curiae that it should
be no longer mandatory for an applicant desirous of
entering the judicial service to be an Advocate of at
least three years’ standing. We, accordingly, in the
light of experience gained after the judgment in All
India Judges’ case (supra), direct to the High Courts
and to the State Governments to amend their rules
so as to enable a fresh law graduate who may not
even have put in even three years of practice, to be
eligible to compete and enter the judicial service.
We, however, recommend that a fresh recruit into
the judicial service should be imparted with training
of not less than one year, preferably two years.”36
The above judgment is extremely vague and does not
engage with the reasoning provided in the earlier AIJA
judgment nor the rationale supposedly provided in
the Shetty Commission report to do away with the
requirement of practising for three years. The judgment
also does not describe the “experience” gained over
the previous decade. Nevertheless, most state judicial
service rules were amended to comply with these
directions and do away with the practise requirement
of three years for the post of Civil Judge and Judicial
Magistrate. Most recently, the Telangana High Court
struck down its own judicial service rules on the
grounds that a minimum requirement of three years
practice at the bar in order to qualify for the selection
process for the post of a civil judge went against the
Supreme Court judgment in the AIJA case.37
As a result of the AIJA judgment from 2002, it has
become quite common for extremely young law
graduates with no experience practising law before
the court to join the judicial services after cracking a
competitive examination and dispense justice as both
Judicial Magistrates and Civil Judges. Most recently, a
candidate was selected for Rajasthan Judicial Service
at the tender age of 21 years.38 The average age of new
judges who are being appointed as Civil Judges and
Judicial Magistrates, as per our calculations, based
on one year’s data is between 26-27 years except in
Kerala where the average age is 33 years.39 Not only are
such candidates likely to have little to no experience
at the bar, they are also unlikely to have significant life
experiences having lived a sheltered experience with
their parents or on a university campus. In order to
understand just how young Indian judges are, let us
examine the average age of Magistrates in the United
States (US) and United Kingdom (UK). In the US, the
average legal experience (not age) of a Magistrate Judge
selected for the federal judiciary was 22 years, despite
the law having a minimum experience requirement of
only 5 years.40 On the other hand, in the UK, anybody
over the age of 18 years can become a magistrate, even
if they lack a law degree or legal training.41 However,
in reality, the average age of Magistrates in the UK is
58.8 years and only 1% of the approximately 15,003
Magistrates are less than 30 years.42 Thus, although
they lack formal legal training these Magistrates are
likely to have a certain maturity due to their age and
lived experiences.
In light of the above discussion, there are two more
issues that impact the quality of judges chosen for the
posts of Judicial Magistrate and Civil Judge. The first,
is the examination process that shortlists candidates
for the interview and second, the training given to the
selected candidates at the judicial academies. Our focus
will be on the latter, since these academies were meant
to give the candidates training and skills that they
supposedly could not pick up even after three years of
practice at the bar.
36 All India Judges’ Association and Ors. v. Union of India, (2002) (n 5).37 PTI, ‘3 yrs experience not needed for junior civil judges’ posts’, The New Indian Express, 6 November 2019 https://www.newindianexpress.com/
states/telangana/2019/nov/06/3-yrs-experience-not-needed-for-junior-civil-judges-posts-2057721.html> accessed on 10 December 2019. 38 TNN, ‘21 year old Jaipur boy set to be Rajasthan's youngest judge’ Times Of India, 21 November 2019 <https://timesofindia.indiatimes.com/city/
jaipur/21-year-old-jaipur-boy-set-to-be-rajasthans-youngest-judge/articleshow/72151874.cms> accessed on 10 December 2019.39 We conducted this assessment using the appointment lists provided to us by 6 High Courts in response to RTI applications filed with the High
Courts at Allahabad, Madhya Pradesh, Odisha, Chhattisgarh, Jharkhand, and Kerala for one year between 2015-2017.40 Appointment of Magistrate Judges- Judicial Business 2012, <https://www.uscourts.gov/statistics-reports/appointments-magistrate-judges-
judicial-business-2012> accessed on 10 December 2019. 41 ‘Magistrates’, Courts and Tribunal Judiciary <https://www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/judicial-roles/magistrates/>
accessed on 10 December 2019. 42 Ministry of Justice, ‘Judicial Diversity Statistics 2018’, 12 July 2018 <https://www.judiciary.uk/wp-content/uploads/2018/07/judicial-diversity-
statistics-2018-1.pdf> accessed on 10 December 2019.
9
The Judicial Service Examination and Selection Process
The recruitment process for the Civil Judge (Junior
Division) is a three-step process which includes
preliminary examination, main examination and
interview, in most states. In others, it is a two-step
process consisting of main examination and interview.43
All states require candidates to have a law degree
before they can sit for the examinations. Most states
also prescribe an upper age limit of thirty years.
An average candidate will begin her preparations for
the judicial services by enrolling in one of the many
coaching institutes that offer courses tailored for
judicial service examinations.
One of the biggest hubs for judicial service
examination coaching is in Delhi. A certain
coaching institute in Delhi claims that 410 of its
students were successful in cracking the judicial
services examinations across the country in 2019
alone. Another one from Delhi claims to have
the best success ratio (best result per number of
students taught in class). We observed that the
same candidates attribute their success to multiple
coaching institutes according to their newspaper
advertisements. The popular institutes in Delhi
charge anything between Rs. 1,50,000 and Rs.
2,17,500 for a full foundation course of about a
year in English and Rs. 1,21,500 for the same in
Hindi.44 They also have weekend batches that run
over a period of two years. There are also many
web-based coaching setups that provide online
lectures and materials including one that caters
exclusively to judgment writing for judicial service
examinations and charges Rs. 16,000 for it.45
The preliminary examination is usually in the form
of multiple-choice questions on subjects that differ
across states. For example, the Delhi Judicial Services
(hereinafter, “DJS”) tests the candidates on general
knowledge and English, in addition to legal knowledge,
while Odisha Judicial Services tests the candidates only
in law. The examination pattern also differs in terms
of number of papers at this stage. In DJS, there is one
paper, whereas in Himachal Pradesh Judicial Services
there are three papers that constitute the preliminary
stage.
The main examination stage is of a subjective question
and answer format. The number and syllabi of test
papers varies across states. Chhattisgarh, for example,
has only one test paper in which it tests the framing
of issues and writing of judgments in civil and criminal
cases, and a working knowledge of Hindi and English.
This is striking in comparison to Uttar Pradesh, which
has five test papers devoted to general knowledge,
Hindi and English language, substantive law, procedural
and evidence law, and penal, revenue and local laws.
The most worrying problem with the judicial service
examinations conducted in India according to
academics working in this area, is that most judicial
service examinations are designed to test candidates on
their ability to memorise the law instead of testing the
ability of candidates to reason and apply the law.46
We examined the question papers set for the judicial
service examinations, by the states of Assam, Bihar,
Delhi, Madhya Pradesh, Maharashtra, Nagaland,
Rajasthan, Tamil Nadu and Uttar Pradesh from 2016 to
2018. A simple look at the examination papers reveals
questions that award rote learning and memorising
capacities of law students. Analytical questions, that
tested the critical thinking capabilities of candidates,
were very few and far between. Even when such
questions feature, the problems were almost exact
copies of the illustrations from bare acts. Except for
III
43 Sikkim, Manipur and Meghalaya are the few states which have only a two-step process.44 Rahul’s IAS, Fee Structure <https://rahulsias.com/fee-structure/> accessed on 10 December 2019. 45 Rostrum Legal, Judgement Writing <https://www.rostrumlegal.com/judgment-writing/> accessed on 10 December 2019.46 Geeta Oberoi, ‘Concerns on Nature and Duration of Inductions Trainings Offered to Magistrates in India’, (2018) 2 International Journal for the
Rule of Law, 140.
10Schooling the Judges: The Selection and Training of Civil Judges and Judicial Magistrates
Delhi, most of the questions in other states required
straightforward explanatory answers. Some examples
of questions from these papers are listed below:
1. What is private defence? When does the right
of private defence of the body extend to cause
death?47
2. What is the effect of fraud or mistake
on the period of limitation prescribed by
the Limitation Act, 1963 for any suit or
application?48
3. Write notes on the following:49
a. Discovery and inspection (related to
documents
b. Inspection by commissions
4. Discuss the provisions under Sections 6 and 7
of the Probation of Offenders Act50
Candidates who clear these examinations are then
required to sit before an interview panel. An interview,
if conducted properly by professionals, can help in
choosing competent candidates as judges. As noted
in our earlier reports51 there is little transparency on
the composition of these panels. Only Jharkhand had
specific rules stating that the interview panel shall
consist of two nominees of the Chief Justice of the
High Court and one nominee of the Public Service
Commission. From conversations with the candidates
who appeared before these panels, we learnt that the
duration of the interview can vary from five minutes
to thirty minutes with the questions varying from
knowledge of the law to the family background of the
candidates. There does not appear to be any specific
format followed by the interview panels. Candidates
who were interviewed by our colleagues, for a previous
report, complained that the interview process can be
arbitrary and nepotistic, although it is difficult to verify
these allegations since the interview panels do not
maintain any transcripts of their proceedings.52 We
cannot therefore make any specific observations on the
quality of the interview process.
Once a candidate clears the examination and interview
process, they are inducted into service and then
sent for training. As per the Judicial Service Rules of
various states, their position in the judicial service is
not contingent on the outcomes of their training at
the state judicial academies. However, all state rules
mandate that all new inductees be on probation for
about two years.
In this backdrop, where experience at the bar is no
longer part of the qualification criteria to become a
judge and the examination/interview process tests
only knowledge and not skills, it becomes all the more
important for judicial academies to provide skills
required by fresh law graduates to become effective
Civil Judges and Judicial Magistrates. This is not a
particularly unique or new insight. The Law Commission
made similar observations as far back as 1986, stating,
in pertinent part, the following:
“…now that a fresh law graduate is being given an
opportunity to enter judicial service, the need for
pre-service training which was keenly felt since long
as pointed out hereinabove, is further accentuated
by this radical departure in doing away with the
essential qualification for entering service, namely,
standing at the Bar. A degree in law, presumably,
may equip the holder thereof with the knowledge of
rudiments of law. The art of advocacy is acquired in
the course of standing at the Bar. Rendering justice
is an art in itself and acquiring rudiments of art
needs training. The minimum equipment to render
justice requires a keen intellect to shift grain from
the chaff, to perceive falsehood, to appraise relative
claims, to evaluate evidence, a fair and balanced
approach, needs of the society, the constitutional
goals and above all a keen desire to do justice.
None of these aspects are dealt with in the syllabus
prescribed at law college…In order therefore to
equip a fresh law graduate to be a good judges a
pre-service training is indispensable.”53
However, in reality, providing practical or clinical
training through an institutionalised training
mechanism is not easy. In the next section we will
deal with the creation of the state judicial academies
followed by the challenges of providing practical or
clinical training to fresh law graduates who lack any
experience practicing at the bar.
47 Local Laws, Criminal Laws & Procedure, Mains, M.P. Judicial Service (Civil Judge) Examination, 2016.48 Law Paper I, Mains, Rajasthan Judicial Service Examination, 2016.49 Law of Evidence and Procedure, Mains,Bihar Judicial Service Examination, 2017.50 Paper III, Mains, Kerala Judicial Services Examination, 2016. 51 Diksha Sanyal and Shriyam Gupta, Discretion and Delay: Challenges in becoming a District and Civil Judge, (Vidhi Centre for Legal Policy, December
2018) <https://vidhilegalpolicy.in/wp-content/uploads/2019/05/DiscretionandDelay.pdf> accessed on 10 December 2019.52 ibid.53 Law Commission of India, Report no. 117 (n 5) 12.
11
The Creation & Functioning of the State Judicial Academies
In 1986, when the Law Commission first studied the
issue of judicial training in India, it describes how only
two judicial academies existed in the country for pre-
service training to new judges. The first was the North-
Eastern Judicial Officers Training Institute at Guwahati
which catered to the states in the north-east. The
second was the Andhra Pradesh State Judicial Academy
of Administration at Secunderabad. These academies
reportedly provided short-term, pre-service training in
judicial proceedings and court management.54 In Uttar
Pradesh, the pre-service training for Civil Judges took
place at the Administrative Training Institute which
was run by the U.P. State Government.55 Most other
states lacked judicial academies. Their judges were
usually trained at the High Court or under District
Judges or at government institutes like the Gandhi
Labour Institute, Ahmedabad; the Indian Institute of
Public Administration, New Delhi and the Institute of
Criminology and Forensic Science, New Delhi.56
Since the report of the Law Commission in 1986, a lot
has changed for the better. As of today, there exists a
National Judicial Academy (NJA) in Bhopal which works
under the close supervision of the Supreme Court of
India and focuses its efforts on providing refresher
training to judges across the board. There also exist 24
State Judicial Academies, with some states like Tamil
Nadu having multiple State Judicial Academies. These
academies are supposed to provide both induction
training for new judges as well as refresher training for
sitting judges. The construction of these State Judicial
Academies was no mean feat and was largely possible
because of generous grant that was recommended by
the Finance Commission.57 From replies provided to
us under the RTI Act by some of these State Judicial
Academies, it appears that State Governments have
been providing them with funding, although we are
unable to confirm whether the funding matches the
demands of the Academies.
For the purposes of this report, we examined the
workings of the State Judicial Academies on three
parameters: (i) governance of the academy, faculty
strength and quality; (ii) curricula & (iii) clinical or
practical training for new candidates. Our focus was
only on induction training for new judges who had
cleared the judicial service examination and who were
to be appointed as the Civil Judge (Junior Division) and
Judicial Magistrates. We did not examine the refresher
training offered to judges across the board.
In order to collect information for this report, we
sourced information through RTI applications filed
with State Judicial Academies and High Courts,
conducted interviews with judges who were trained
at these academies and finally, from publicly available
information on the websites of these judicial
academies. As is often the case with the judiciary, many
of the State Judicial Academies did not reply to our
RTI applications or even if they did, the answers were
evasive. Only a few state judicial academies provided us
with useful information.
Nature of Response State Judicial Academy
No information given Bihar, Delhi, Himachal Pradesh, Mizoram
Incomplete responses
Andhra Pradesh, Gujarat, Jharkhand, Kerala, Maharashtra, Manipur,Meghalaya, Rajasthan, Sikkim, Tamil Nadu, Uttar Pradesh
Complete responses Chandigarh, Chhattisgarh, Odisha, Uttarakhand, West Bengal
IV
54 Law Commission of India, Report no. 117 (n 5) 13. 55 Law Commission of India, Report no. 117 (n 5) 6. 56 ibid. 57 PIB, ‘Review of Utilisation of 13th Finance Commission Grants’, GOI, Ministry of Law and Justice, May 2011 <https://pib.gov.in/newsite/
PrintRelease.aspx?relid=72070 >accessed on 10 December 2019.
12Schooling the Judges: The Selection and Training of Civil Judges and Judicial Magistrates
a) Governance and Faculty at the State Judicial Academies
The governance structure and recruitment rules for
most State Judicial Academies are created through
rules notified by the parent High Court. It is no
surprise then, that the governing structure and faculty
appointments are firmly ensconced in the hands of the
judiciary. Every State Judicial Academy will usually
have a governing council or advisory board, usually
staffed by High Court judges and in some instances,
bureaucrats of the State Government. The daily running
of the State Judicial Academies is usually vested with a
Director and Deputy Director, who is usually a District
Judge, except for the academies at Chandigarh, Delhi
and Jharkhand which are headed by academicians. This
model of governance appears to be based on a model
proposed by the Chief Justice of India in 1986.58
This takes us to one of the larger criticisms of the
State Judicial Academies by Professor Geeta Oberoi
of the National Judicial Academy who is one of the
few academics to have written on the functioning of
the State Judicial Academies. In one of her articles,
she points out how the State Judicial Academies are
overwhelmingly controlled by judges of the High Courts
and are not provided the independence that they
require to flourish as academic institutions. In pertinent
part, Professor Oberoi states the following:
“… SJAs need to cut their umbilical cord from their
parent high court as this uncut chord is turning
the SJA just into an extension of the court itself. Of
course, the SJAs being staffed with subordinate
judiciary, are in no position to cut this umbilical
cord. This chord has to be cut by the parent
high court if the SJAs are to grow into a vibrant
educational institution where mind is free from fear,
new intellectual rays rush in and education takes
primacy. The mind set of present high court justices
proves that high courts are not yet ready to cut this
umbilical cord.”59
In remarkably blunt terms, Professor Oberoi explains
why this is a problematic approach, stating in pertinent
part the following:
“The problem lies in the fact that most of district
judges and high court judges in India have educated
under poor model of legal education and therefore
there is a danger of repeating their own inferior
educational experience at the SJA. Their ignorance
on educational theories around training of adult
professionals makes them reluctant to accept
teaching innovations and new experiments for
learning. Till this date, none of the SJAs ventured to
develop new methods for the delivery of induction
course curriculum.”60
As outsiders to the judiciary, with little to no access
to the State Judicial Academies, we are unable to
corroborate Professor Oberoi’s observations but
from a theoretical perspective, her criticism appears
to be valid. It is also unlikely that a sitting judge who is
deputed to the state judicial academy for a few years as
a Director, will have the capacity or incentive to create
paradigm altering judicial curricula that will help train a
new generation of Civil Judges and Judicial Magistrates
who are able to improve the standards of adjudication.
Apart from leadership at these State Judicial
Academies, there is also the question of the faculty.
We were surprised to discover, from RTI replies and
the websites of the State Judicial Academies, that
the academies at Chhattisgarh, Gujarat, Karnataka,
Maharashtra, Manipur, Meghalaya, Sikkim, Tamil Nadu,
Tripura and West Bengal lacked permanent faculty. We
presume that the training is provided by the Director
and Assistant Directors who are usually District Judges
or guest faculty, who once again tend to be judges.
While it may be acceptable, even desirable, to use guest
faculty for refresher trainings for sitting judges, it is
not be advisable to use guest faculty for the mandatory
induction training for newly selected Civil Judges and
Judicial Magistrates which extends to almost one year.
Induction training, unlike refresher training, requires
some amount of standardisation as well as skill on part
of the faculty. Such teaching skills are honed by faculty
through repetition and this can be achieved only by
the presence of permanent faculty. Having rotational
faculty or guest faculty is likely to compromise the
quality of induction training given at these academies.
We were unable to determine the reasons for the lack
of permanent faculty at these judicial academies and it
may be worthwhile for the Law Ministry or the Supreme
Court to conduct a deeper inquiry into this issue.
58 Law Commission of India, Report no 117 (n 5) Appendix II.59 Geeta Oberoi, ‘Limitation of Induction Trainings Offered to Magistrates by State Judicial Actors in India’ (2018), 4 Athens Journal of Law, 302. 60 Ibid at 310.
13
b) The curricula, for induction training at the State Judicial Academies
When the Law Commission first made the
recommendation to abolish the practice requirement
of three years, it was based on the assumption that new
graduates could be imparted the same skills through
training at judicial academies.61
In the same report, the Law Commission reproduced
a barebones curriculum prepared by the Chief Justice
of India, which has been reproduced in the Annexure
I to this report. This curriculum prescribed courses on
court management, system managements, law and legal
principles, substantive law developments, sentencing
discretion, related matters of judicial policy, general
orientation. Apart from these theoretical courses,
practical training was also prescribed, wherein new
judges were expected to sit in court with experienced
judges to be trained on civil and criminal procedure.62
But as can be seen from the Annexure I, not much
thought has been given to structuring such training
to impart skills to newly inducted judges who have no
experience practicing at the bar.
This is a particularly important discussion to have in
India, given the number of fresh law graduates entering
the judicial service without any practical skills since
clinical legal education which is supposed to provide
such exposure and skills to law students, has largely
failed, even in the National Law Universities. This is
because clinical legal education is difficult to execute
in reality, even in advanced jurisdictions like the
United States where there has been a clamour for such
education to be delivered since the mid-fifties.63
Contrary to common perception, clinical legal
education does not mean sending students to
courtrooms to act as mere observers or glorified peons
or clerks.64 Rather it requires students to be given
practical experience of the law through a structured
learning environment.65 As noted by one commentator:
“The challenge here is to provide sufficient
guidance without undermining the students’ sense
of independence, professionalism and personal
commitment created by their clinical work, which
goes to the heart of the clinical methodology.”66
This would necessarily require practitioners with
experience of law to constantly provide feedback.
Executing such a training regimen in law schools is
difficult because of the lack of availability of faculty
with practice experience. As a result, there are some
commentators who have argued against clinical legal
education in law school, arguing that such training is
best given through an apprenticeship program or on the
job as a lawyer.67
Due to the failure or non-existence of clinical legal
education, most India law graduates end up learning
practical skills only after they enter practice while
under the supervision of a more experienced lawyer. It
would however be a disaster for a judge to be learning
on the job with no prior experience in the courtroom,
while being practically unsupervised and sentencing
people to imprisonment. The question thus is how
should judicial academies go about imparting the kind
of clinical training required by these judges who have
no experience at the Bar.
Historically, from documents such as the Rankin
Committee reports, the Law Commissions reports
of 1958 and 1986, it appears that the favoured
mode of practical, or as we call it ‘clinical’ training
is to depute trainee judges to sit with Civil Judges,
Judicial Magistrates and District Judges in court and
record depositions, make summaries of pleadings
and evidence, take notes on arguments and case
laws and submit the same to the presiding judge for
comments and feedback which would then form part
of the decision to confirm the appointment of the
trainee judge.68 The second mode of clinical or rather
field training, is when trainee judges are sent to the
revenue department, the police department, forensic
61 Law Commission of India, Report no. 117 (n 2) 12.62 Law Commission of India, Report no. 117 (n 2) Appendix II. 63 William T. Vukowich, ‘Comment: The Lack of Practical Training in Law Schools: Criticisms, Causes and Programs for Change’, (1971) 23
Case W.Res. L. Rev. 142; American Bar Association Section of Legal Education and Admissions to the Bar, ‘Legal Education and Professional
Development- An Educational Continuum’, July 1992. 64 N.R Madhava Menon, Clinical Legal Education, (Eastern Book Co., 1998) 13. 65 ibid 30. 66 ibid. 67 William T. Vukowich (n 63) 148-149. 68 Rankin Committee, (n 24) 185.
14Schooling the Judges: The Selection and Training of Civil Judges and Judicial Magistrates
laboratories and hospitals to observe and learn how
these departments work and the practices that they
follow in relation to judicial proceedings.69
More recently, in 2007-08 there appears to have
been a more comprehensive document called the
Model National Judicial Education Curriculum that
was prepared by the National Judicial Academy, after
consultation with the judges of the High Courts and
Supreme Court for both induction training given to
new judges and refresher training, for sitting judges.70
We were however unable to access a copy of this
document despite filing repeated applications under
the RTI Act with the National Judicial Academy. Please
see Annexure II for details. In its last response, the NJA
stated the following in response:
“The sixth column refers to the information
regarding Model National Judicial Curriculum, this
term is vague and hence no reply could be issued”.
Apart from scanning the websites of judicial academies
for their curricula, we also filed RTI applications with all
State Judicial Academies requesting for copies of their
curricula for induction training of Civil Judges. However
only five states provided their curricula in response to
our requests for information.71 While some academies,
like the Chandigarh Judicial Academy are clearly giving
a lot of thought to their curricula, the remaining (who
provided us with copies of their curricula) are focussed
on re-teaching legal subjects, which are anyway learnt
by candidates during their time at law school and on
which knowledge they are tested by the judicial service
examinations.
c) Clinical or practical training for new candidates
On the most important issue of clinical or practical
training for inductee judges, we discovered that most
academies do have a system of placing trainee judges
with Civil Judges (Junior Division) who hold court every
day. However, it was also clear from the interviews we
conducted, that most candidates are not very satisfied
with the experience.
Three significant observations in this regard are as
follows.
First, trainer judges (i.e. the presiding judge of the
court with whom the trainee judge is placed) are not
instructed how to train or provide feedback to the
trainee judges. As a result, every trainer judge provides
what she thinks may qualify as appropriate training.
Sometimes, the trainer judges expect trainee judges to
assist them with case summaries, etc. It appeared from
accounts narrated to us that the system appears to be
working more like a clerkship rather than a training
clinic for prospective judges.
Second, we were informed that these trainer judges
lack the time to provide the kind of training since case-
loads are high in most courts. Having to train a person
while also holding court, makes severe demands on the
time of judges designated as trainers. Owing to this, the
trainer judges are themselves not forthcoming about
teaching the trainees. The trainee judges are expected
to maintain a diary for keeping track of the activities
undertaken during the training which in most cases is
not reviewed due to time constraints.
Third, while we were informed that some states do
have a return stint for the trainees at the academy in
the form of a feedback session where all doubts from
the court room training may be clarified, this is absent
in most states and the trainee judges are posted with
immediate effect. Even where there is a second round
of training at the academy post the court room training,
the faculty at academy are ill-equipped to clarify some
of the practical doubts that would have arisen because
many of these queries may be specific to a particular
district or a court.
Apart from the court room training, the field training
with revenue authorities, forensic science laboratories
and the police do not appear to be well planned. In
its 14th report the Law Commission had explained
that back in the fifties, a new judge would be given
revenue training for a period of three months. During
this period, he would be attached to a village headman,
revenue inspector and minor irrigation overseer to
get a good understanding of how revenue records
are maintained, how surveys are conducted and how
government accounts are maintained. This training was
apparently followed by a short training of about two
weeks with a circle inspector of police.
69 Law Commission of India, Report No. 14(1) (n 2) 179.70 ‘National Judicial Education Strategy’, National Judicial Academy, http://www.nja.nic.in/nje.html> accessed on 10 December 2019.71 These five state judicial academies were Chandigarh, Chhattisgarh, Odisha, Uttarakhand and West Bengal.
15
From our interviews, it appears that such intensive
field training is no longer provided to most candidates.
We were informed that most field training sessions
were one day outings to the government departments
or police stations or forensic laboratories. One
commentator has referred to them as “picnics”.72 Only
in some states like Karnataka, were candidates offered
some prior briefings about the departments they were
visiting, which apparently made their experience more
fruitful.
From our interviews of judges who were trained at
Judicial Academies, it is quite clear that providing
practical skills trainings for judges through a Judicial
Academy is not an easy as was presumed.
On the question of whether the State Judicial
Academies carry out any evaluations, the replies
that we received in response to our RTI applications
revealed that 9 of these State Judicial Academies do
conduct some form of evaluation while the remaining 7
do not have any process of evaluation in place.
Academies that carry out evaluation
Academies that have no evaluation process
Andhra Pradesh & TelanganaGujaratJharkhandKarnatakaKeralaManipurOdishaTripura
ChandigarhChhattisgarhDelhiMeghalayaSikkimTamil NaduWest Bengal
Only seven state academies - Andhra Pradesh,
Jharkhand, Karnataka, Kerala, Manipur, Tripura and
Uttarakhand have a mechanism for institutional
measures to mitigate the poor performance by trainee
officers and ensure that they are given more attention
and focus. Such mechanisms include grading recruits
into scales based on the marks obtained in the internal
examination and extending the probation of those
officers with poor marks, individual counselling,
additional examinations, special attention and intensive
training, extended probation, etc. The details provided
by each state is as follows:
State Measures Taken Towards Poor Performing Trainee Officers as per RTI application
Andhra Pradesh (includes Telangana)
Faculty to determine the deficiencies and such judges would be given further lessons in the deficient areas separately.
Jharkhand In 2016-17, 22 trainees were detained for three months extended training after failing to secure qualifying marks in the final exam.
Karnataka Focus on personal attention by requesting retired District Judges to tutor the officer on substantive and procedural law.
Kerala Special attention and intensive training are given to the poorly performing officers.
Manipur Training module is designed to include evaluation and correctional training, performance assessment and correction training to assess the improvement of trainee civil judges on probation. Further the officers are to appear for a departmental examination during the period of probation. In case any officer fails to clear the exam, he is to appear for it again. In case of not clearing the training successfully, the period of training may also be extended.
Tripura Poor performing trainees are individually counselled.
Uttarakhand The recruits are graded in their exams in the following scales - ‘A’, ‘B’, ‘C’ and ‘D’. D will denote less than 40% in each paper (fail and unsatisfactory). C = 40% to 60% (fair), B = 60% to 80% (very good), A = more than 80% (outstanding)
Recruits getting a D would have to reappear for the exam when the same is conducted for the next batch. Till such time, the duration of the recruit’s probation will be extended.
72 Geeta Oberoi, (n 59) 313.
16Schooling the Judges: The Selection and Training of Civil Judges and Judicial Magistrates
A Toothless Probationary Period
The last issue we sought to examine is whether states
had in place a mechanism to evaluate trainee judges
after completion of the training at the Academy and
the probationary period to assess their suitability to be
appointed as active judges.
We began this enquiry by examining the Judicial Service
Rules of all the states. Some states in their judicial
rules mandatorily require trainee judges to clear
departmental examinations that are conducted by the
High Courts.73 In the case of Delhi, the High Court did
provide us with copies of the departmental examination
which covered both questions on law as well as
questions on administration of government accounts
etc. Interviewees from some states informed us of
instances where two weeks before the departmental
examination judicial officers were sent on mandatory
study leave to prepare. We were informed that these
examinations turn out to be a replica of the judicial
service examination with questions on legal provisions
and sections. These examinations appear to be more
of a formality and are not a serious test of ability. It
is not clear if the failure to clear the departmental
examination has any implications for the trainee judge’s
future.
The language, in the judicial service rules, relating
to conditions for dismissal from service during the
probationary period is vague and merely stated that
the probationer can be dismissed from service if found
unsuitable. In response to our RTI applications asking
for reasons for which a probationer can be found
unsuitable to continue in the judicial service, most
High Courts directed us back to the respective rules,
which as we explained are vague on the issue. We also
discovered that it is rare for anyone to be dismissed
during this probationary period. Numbers provided
in reply to our RTI applications reveal that almost no
trainee is found unsuitable during the probationary
period. In Himachal Pradesh, only three probationers
have ever been discharged.74 The figure is six in
Chhattisgarh and two in Assam.75 It is possible that
these High Courts take feedback from the persons who
have conducted the training of these judges before
they make their decision to confirm the appointment
of a judge. The High Courts of West Bengal, Sikkim and
Manipur maintained that nobody was ever discharged
for being found unsuitable and the Delhi High Court
stated that they do not maintain this data.76 The
remaining High Courts did not provide information on
this issue.
Simply put, it appears that candidates who clear the
judicial service examination are virtually guaranteed
to gain life-time appointments in the judicial services
unless the High Courts invoke their rather opaque
discretionary powers to dismiss the officer from
service.
V
73 Based on the latest judicial service rules these are the states whose High Courts conduct departmental examinations as a mandatory exercise
before confirmation of judicial officers after probation - West Bengal, Himachal Pradesh, Punjab, Jharkhand and Haryana. For the states of Assam,
Gujarat, Mizoram, Tripura, Manipur, Meghalaya and Odisha if the need arises the High Courts may conduct an examination to test the suitability of
the judicial officers. Judicial service rules of remaining states were silent about 74 Filed by Reshma Sekhar on 30 March 2019, Research Fellow at Vidhi Centre for Legal Policy, No. HHC/RTI/SPIO-321-2018-19 (Replies on file
with the authors). 75 Filed by Vagda Galhotra on 20 March 2019, Associate Fellow at Vidhi Centre for Legal Policy, No. HC.XXXIV-2/2019/109/RTI VG, 12-04-2019
(Replies on file with the authors).76 Filed by Reshma Sekhar on April 24 2019, Research Fellow at Vidhi Centre for Legal Policy, No. 1140/HCS/RTI (Sikkim); Filed by Vagda Galhotra
on 24 May 2019, Associate Fellow at Vidhi Centre for Legal Policy (West Bengal); Filed by Reshma Sekhar on 18 May 2019, Research Fellow at
Vidhi Centre for Legal Policy, HCM/I-12-2006(Estt) 4/10730 (Manipur); Filed by Vagda Galhotra on 28 May 2019, Associate Fellow at Vidhi Centre
for Legal Policy 1130/RTI/DHC/362/2019 (Delhi) (Replies on file with the authors).
17
Conclusion
The issue of qualifications and training of Civil Judges
(Junior Division) and Judicial Magistrates has not
received the attention that it deserves in the debate
on judicial reforms. The Judicial Magistrate is literally,
the first line of defence for civil liberties. Yet very
little thought has gone into the manner in which the
qualification criteria for these judges has changed
over the last few decades. Even presuming that the
qualification criteria of three years practice is restored
in the near future, India must debate whether it wants
young candidates in their twenties being appointed to
this crucial office at a time when the average years of
practice (not age) of Federal Magistrate Judges in the
US is 22 years and the average age of UK Magistrates is
58.8 years. Legal and real-life experiences are essential
to mould thoughtful and compassionate judges.
On the issue of doing away with bar experience on the
pretext that it could be compensated through rigorous
training at the judicial academy, it would appear that
the Law Commission and Supreme Court seriously
overestimated the ability of the Indian state to impart
such skills to young inexperienced advocates through
a structured training system. Even though all the High
Courts have managed to ensure the construction of
State Judicial Academies, actually providing meaningful
induction training to new trainees has proved to be a
challenge. As is evident from our report, many of these
State Judicial Academies lack the faculty required to
deliver a structured induction training program for new
judges.
Similarly, most State Judicial Academies do not
appear to have given much thought to the curriculum
for training inductee judges since the ones that we
could study, appear to be repeating the same subjects
taught to candidates in law schools. The practical or
clinical training component, in our opinion appears
to have been poorly planned and executed by most
State Judicial Academies because most of the sitting
judges who are supposed to be training and evaluating
new judges in their courtrooms are not given any
instructions on how to guide and assess these judges.
In our opinion, if the State Judicial Academies are to
mature into respectable institutions of learning, it is
necessary for them to develop independent of the
High Courts. Judicial education is a serious issue that
requires full-time professional attention rather than
the rotational leadership by sitting judges who are
rotated through the Director positions of most the
State Judicial Academies.
It would also be advisable for all State Judicial
Academies to be a lot more transparent about their
functioning. There is very little information available
on their websites and many of these academies did
not respond to our RTI applications. Such opacity is
worrying and the Chief Justices of the High Courts, who
are patrons of these academies, must urge them to be
more transparent in their functioning.
If the government and judiciary are serious about
improving the status of these judicial academies,
they must commission evaluation studies of these
academies. The Parliamentary Standing Committee on
Law and Justice in its 96th report recommended to the
Department of Justice to conduct such a study of the
National Judicial Academy. In pertinent part, it stated
the following:
“6.53 The Committee observes that the Academy has
been in existence for more than two decades now
and substantial amount of public fund has already
been spent on it. It would, therefore, be useful for the
Department to get a third party evaluation made of
the quality of training being imparted at the Academy
and the extent to which training at the Academy has
resulted in strengthening the judicial system, so that
shortcomings, if any, could be removed.”
To the best of our knowledge, no such study has been
commissioned.
Lastly, it would be advisable for State Governments
and High Courts to consider overhauling their
respective Judicial Service Rules in order to ensure
that candidates are evaluated thoroughly on the basis
of their performance at the Judicial Academy, as well
as their clinical or practical training, before they are
allowed to hold court. Merely clearing the judicial
service examination and a departmental examination
should not be sufficient to become a judge.
18Schooling the Judges: The Selection and Training of Civil Judges and Judicial Magistrates
Annexures
19
Annexure I
20Schooling the Judges: The Selection and Training of Civil Judges and Judicial Magistrates
21
22Schooling the Judges: The Selection and Training of Civil Judges and Judicial Magistrates
23
APPLICATION UNDER SECTION 6 OF THE RIGHT TO INFORMATION ACT, 2005 ToPublic Information Officer,National Judicial Academy, Bhopal Date of Application 16.10.2019
Name of Applicant Reshma S
Postal Address D-359, Lower Ground Floor, Defence Colony, New Delhi-110024
Contact phone no. 9745271600/011-43102767
Email ID [email protected]
Specific subject matter ofdocument
Information regarding Model National Judicial Education Curriculum
Further details of queries Please provide us with a copy of the Model National JudicialEducation Curriculum
Period to which thisdocument relates to
Till date
Preferred format ofreceipt of information.
Soft/digital copy prefered in English language.
Preferred mode ofreceipt of copy ofdocuments
By speed post/email, if soft/ digital copy is not convenient.
Mode of payment ofapplication fee
Via Post
I am herewith paying the application fee (Rs 10) by way of post. If you are of the view that the aboverequested information does not pertain to your department, then please follow the provisions ofSection 6 (3) of the RTI Act 2005 and direct the query to the concerned authority. Also, as per theprovisions of the RTI Act, 2005, kindly provide the details (including name and designation) of the firstappellate authority before which I may, if required, file my first appeal.
Regards, Reshma Sekhar To, March 15, 2019Registrar(Administration),Appellate Authority,National Judicial Academy, Bhopal
Annexure II
24Schooling the Judges: The Selection and Training of Civil Judges and Judicial Magistrates